Citation Nr: 9900535
Decision Date: 01/11/99 Archive Date: 01/19/99
DOCKET NO. 93-21 815 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for a bilateral ankle
disorder.
2. Entitlement to service connection for a bilateral knee
disorder.
3. Entitlement to an increased evaluation for tension
headaches, currently evaluated as 10 percent disabling.
4. Entitlement to an increased evaluation for bilateral
inguinal hernia, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Jennifer Lane, Counsel
INTRODUCTION
The veteran had active duty from March 1989 to March 1991.
The current appeal arises from rating decisions in December
1991, May 1992 and April 1993. A hearing was held at the
Regional Office (RO) in September 1993 before the
undersigned, a member of the Board of Veterans' Appeals
(Board). The Board remanded the case in August 1995 and
November 1995.
As noted in the Board’s prior remand, the veteran testified
at a RO hearing in October 1992 that a private physician felt
that his hernia surgery resulted in nerve damage. Later, the
veteran testified that he had nerve entrapment. As discussed
below, medical evidence in support of that testimony has been
received. Thus, the veteran may wish to pursue a claim for
entitlement to service connection for a neurological disorder
secondary to his service-connected bilateral inguinal hernia.
The matter is again referred to the RO for appropriate
action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that he suffers from ankle
problems. He also argues that service connection is
warranted for a bilateral knee disability because he was seen
for knee complaints during service. Additionally, the
veteran asserts that he takes prescription and over-the-
counter medications for his headaches but that the
medications to do not help. He also maintains that he
experiences pain in the areas of his hernias which warrants
more than a 10 percent disability evaluation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claims for
entitlement to service connection for a bilateral ankle
disorder and a bilateral knee disorder are well-grounded. It
is also the decision of the Board that the preponderance of
the evidence is against the claims for entitlement to
increased evaluations for tension headaches and bilateral
inguinal hernia and that the record supports a 10 percent
evaluation for the other inguinal hernia surgical scar.
FINDINGS OF FACT
1. No competent medical evidence is of record that would
establish that the veteran currently has a disability of the
knees or ankles which is causally related to service or to
any incident or event therein.
2 All relevant information necessary for an equitable
disposition of the appeal of the increased rating claims has
been developed.
3. The veteran complains of frequent and severe headaches,
but his service-connected tension headaches are not
prostrating or productive of severe economic inadaptability.
4. The veteran’s right and left inguinal hernias are not
recurrent.
5. The veteran’s right and left inguinal hernia surgical
scars are tender and painful on objective demonstration.
CONCLUSIONS OF LAW
1. The veteran’s claims for entitlement to service
connection for a bilateral ankle disorder and a bilateral
knee disorder are not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
2. The criteria for an evaluation in excess of 10 percent
for tension headaches are not met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, Part 4, Diagnostic
Code 8100 (1998).
3. The criteria for a compensable evaluation for bilateral
inguinal hernia under the provisions of Diagnostic Code 7338
are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 4.2, 4.7, 4.10, Part 4 (1998).
4. The criteria for a 10 percent evaluation for the other
scar from the inguinal hernia surgeries are met. 38 U.S.C.A.
§§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.7, 4.10, Part 4,
Diagnostic Codes 7803, 7804, 7805 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
Initially, the Board notes that entitlement to service
connection for a particular disability requires evidence of
the existence of a current disability and evidence that the
disability resulted from a disease or injury incurred in or
aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West
1991). Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(1998).
Additionally, the Board notes that the veteran must submit
evidence that a claim for entitlement to service connection
benefits is well-grounded. 38 U.S.C.A. § 5107(a). A well-
grounded claim is one which is plausible; that is meritorious
on its own and capable of substantiation. Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). Unlike civil actions,
the Department of Veterans Affairs (VA) benefit system
requires more than just an allegation. The veteran must
submit supporting evidence that is sufficient to justify a
belief by a fair and impartial individual that the claim is
plausible. Tripak v. Derwinski, 2 Vet. App. 609, 611 (1992);
Grivois v. Brown, 6 Vet. App. 136, 139 (1994).
The three elements of a well grounded claim for service
connection benefits are: (1) evidence of a current disability
as provided by a medical diagnosis; (2) evidence of
incurrence or aggravation of a disease or injury in service
as provided by either lay or medical evidence, as the
situation dictates; and, (3) a nexus, or link, between the
inservice disease or injury and the current disability as
provided by competent medical evidence. See Caluza v. Brown,
7 Vet. App. 498, 506 (1995); 38 C.F.R. § 3.303. This means
that there must be evidence of disease or injury during
service, a current disability, and a link between the two.
Further, the evidence must be competent. That is, the
presence of a current disability requires a medical
diagnosis; and, where an opinion is used to link the current
disorder to a cause during service, a competent opinion of a
medical professional is required. See Caluza at 504.
The veteran contends that he received treatment for his ankle
and knee complaints in service. A service medical record
dated in April 1989 shows that the veteran complained of shin
pain. The assessment was shin splint verses stress reaction.
The report of a service medical examination in December 1990
shows that the veteran reported that his ankles and knees
were often sore and stiff after standing for a short while.
However, clinical evaluation of the lower extremities and
musculoskeletal system was normal.
The Board also notes that evidence dated over one year after
the veteran’s separation from service is against finding that
the veteran’s knee and ankle complaints have continued since
service. A VA hospital report dated in March 1992,
pertaining to dental treatment, shows that the veteran had
complaints other than dental related symptoms, including
headaches and post-operative bilateral inguinal hernia pain,
but there were no complaints regarding the veteran’s knees or
ankles noted. Moreover, a physical examination was
performed, but no abnormalities of the knees or ankles were
noted.
According to a private medical record dated in April 1992,
the veteran reported that he had recently experienced
problems with his knees and wondered if they could be due to
“marching with packs on” in service. The veteran underwent
a VA examination of the joints in March 1993. The diagnosis
was history of recurrent bilateral knee soreness, with
physical examination and X-rays within normal limits. The
examiner related that the veteran possibly had patellofemoral
pain syndrome. The Board notes that pain is not a disability
for the purpose of establishing entitlement to compensation
benefits. The diagnosis regarding the veteran’s ankle
complaints was history of recurrent ankle soreness with
physical examination and X-rays within normal limits.
A private medical record dated in July 1993 shows that the
veteran complained of arthralgias of the knees bilaterally,
left greater than right, of about four years duration. He
also reported no history of trauma or fractures. The
assessment was arthralgias of unknown etiology, possible
chondromalacia patellae. Later in July 1993, the veteran was
seen for complaints of lateral knee and ankle pain for the
previous five years which the veteran related to overuse
during his training in service. It was noted that the
veteran was very vague when asked to localize his ankle pain.
The impression was chondromalacia of patella bilateral.
Another private medical record dated in September 1995 shows
that the purpose of that examination was to obtain a second
opinion on the veteran’s bilateral knee pain for the VA
hospital. The impression at that time was chondromalacia.
Thus, there is competent evidence attributing the veteran’s
knee complaints to chondromalacia. However, the veteran has
submitted no competent evidence tending to show that he
currently has a disability of the ankles. Moreover, there is
no competent medical evidence linking any current disability
of the knees to service, events in service or complaints in
service. While the veteran contends that his ankle and knee
problems are due to activities in service and the Board finds
his contentions and testimony credible for the purpose of
determining whether his service connection claims are well-
grounded, as a layperson, he is not competent to link any
current disability of the knees or ankles to service.
Therefore, the Board finds that the claims for entitlement to
service connection for bilateral ankle and knee disorders are
not well-grounded.
Where the veteran has not met the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that a claim for service connection
benefits is well-grounded, the VA has no duty to assist him
in developing facts pertinent to such claim, to include
affording him another VA examination or obtaining a medical
opinion. 38 U.S.C.A. § 5107. Further, if the veteran does
not submit a well-grounded claim, the appeal of the claim
must fail. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81.
The governing law, 38 U.S.C.A. § 5107(a),
[R]eflects a policy that implausible
claims should not consume the limited
resources of the VA and force into even
greater backlog and delay those claims
which -- as well grounded -- require
adjudication. . . . Attentiveness to this
threshold issue is, by law, not only for
the Board but for the initial
adjudicators, for it is their duty to
avoid adjudicating the implausible claims
at the expense of delaying well grounded
ones.
Grivois v. Brown, 6 Vet. App. 136, 139 (1994).
Additionally, the Board notes that the veteran has not
reported that any competent evidence exists that if obtained
would establish well-grounded claims for entitlement to
service connection benefits for the disabilities at issue.
Under the circumstances, the VA has no further duty to assist
the veteran in developing well-grounded claims for
entitlement to service connection for a bilateral ankle
disorder and a bilateral knee disorder. Epps v. Brown,
9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69
(1995).
II. Increased Ratings
The Board finds that the claims for entitlement to increased
evaluations for tension headaches and bilateral inguinal
hernia are well-grounded within the meaning of 38 U.S.C.A.
§ 5107, that is, they are plausible, meritorious on their own
or capable of substantiation. Proscelle v. Derwinski, 2 Vet.
App. 629 (1992); Murphy, 1 Vet. App. 78. The Board further
finds that the VA has met its duty to assist in developing
the facts pertinent to those claims. 38 U.S.C.A. § 5107.
Disability ratings are based on schedular requirements which
reflect the average impairment of earning capacity occasioned
by the state of a disorder. 38 U.S.C.A. § 1155. Separate
rating codes identify the various disabilities. 38 C.F.R.
Part 4. In determining the level of impairment, the
disability must be considered in the context of the whole
recorded history, including service medical records. 38
C.F.R. § 4.2. An evaluation of the level of disability
present must also include consideration of the functional
impairment of the veteran's ability to engage in ordinary
activities, including employment, and the effect of pain on
the functional abilities. 38 C.F.R. § 4.10. Also, where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
The history of the service-connected disabilities may be
briefly described. The service medical records show that the
veteran underwent two hernia surgeries in 1990. The service
medical records also show that the veteran complained of
severe headaches in January 1990. In December 1990, the
veteran reported having severe recurring daily headaches. He
underwent a mental status evaluation in January 1991. The
examining psychiatrist, who diagnosed a personality disorder
with immature and histrionic features productive of
significant subjective stress and impairment in occupational
function, related that the veteran had “numerous somatic
complaints, especially headaches which he state[d] [were]
directly caused by the stress of being in the Army.” As
noted above, the RO granted service connection for tension
headaches and bilateral inguinal hernia and assigned 10
percent ratings for both disabilities under the VA Schedule
of Rating Disabilities. 38 C.F.R. Part 4.
Under Diagnostic Code 8100, headaches with very frequent
completely prostrating and prolonged attacks productive of
severe economic inadaptability warrant a 50 percent
evaluation, headaches with characteristic prostrating attacks
occurring on an average once a month over the last several
months warrant a 30 percent evaluation, headaches with
characteristic prostrating attacks averaging one in 2 months
over the last several months warrant a 10 percent evaluation,
and headaches with less frequent attacks warrant a
noncompensable evaluation. 38 C.F.R. Part 4.
At a VA neurological examination in March 1993, the veteran
reported that his headaches began in the back of his eyes and
spread to the bi-temporal area and sometimes began in the
back of his head and moved forward, bilaterally. He related
that his headaches lasted a few hours to all day and that
they occurred four to five times a week. The diagnosis was
probable tension headaches. Private medical treatment
records show that the veteran’s complaints included headaches
in March, April and May 1997.
The veteran submitted records pertaining to employment from
May 1991 to October 1994. It appears that the veteran missed
approximately 55 days due to illness, although the illnesses
were not specified. Assuming that such absences were due to
the veteran’s service-connected headaches, the Board finds
that 55 absences over a period of approximately four and one
half years do not constitute what could reasonably be
considered severe economic inadaptability under the
provisions of Diagnostic Code 8100.
Additionally, at the October 1992 RO hearing, the veteran
reported that he had headaches three times a week. At the
Board hearing in September 1993, the veteran testified he had
a headache nearly every day and that he would wake up with a
headache four or five days a week. At both hearings, he
testified that if he woke up with a headache it would last
the entire day. In October 1992, the veteran indicated that
other headaches lasted a couple of hours. He also testified,
in October 1992, that no nausea or vomiting was associated
with his headaches; however, in September 1993, he testified
that the headaches caused a bit of nausea and that bad
headaches caused his vision to blur. He also testified in
September 1993 that he was very light sensitive but indicated
that he did not see funny lights during the headaches.
Additionally, at the Board hearing, the veteran testified
that he had to go to bed because of his headaches more than
once a month. At the RO hearing, the veteran was also asked
if he would lie down when he had a headache. In response,
the veteran indicated that he would lie down and close his
eyes if he had no where to go and that doing so helped a
“little bit.” He also testified that he attended school
during the day and worked at night so that he did not have
much time to lie down other than to sleep.
Thus, the veteran’s testimony regarding the frequency of the
headaches and the symptoms associated with the headaches was
not entirely the same at the two hearings. Moreover, his
testimony regarding his having to lie down when experiencing
a headache at the October 1992 RO hearing suggests that his
headaches did not prevent him from attending school or
reporting to work. In fact, he indicated that he would only
lie down when he did not have to go to school or work.
Therefore, the Board finds that the veteran’s service-
connected tension headaches are not productive of headaches
which could reasonably be considered prostrating attacks
occurring on an average once a month over several months.
While the veteran related in a VA Form 21-4138 (Statement in
Support of Claim) dated in August 1995 that his losing a job
in December 1994 had caused his headaches to worsen, he has
not asserted that the specific criteria for an evaluation in
excess of 10 percent under Diagnostic Code 8100 are now met.
With regard to the veteran’s service-connected bilateral
inguinal hernia, the Board notes that inguinal hernia is
evaluated under Diagnostic Code 7338. Under that Diagnostic
Code, a 60 percent evaluation is warranted when the hernia is
large, postoperative, recurrent, not well supported under
ordinary conditions and not readily reducible, when
considered inoperable. When the disability is small,
postoperative recurrent, or unoperated irremediable, not well
supported by truss, or not readily reducible, a 30 percent
evaluation is warranted. Postoperative recurrent hernia,
readily reducible and well supported by truss or belt
warrants a 10 percent evaluation. When the hernia is not
operated, but remediable, a noncompensable evaluation is
warranted. A noncompensable evaluation is also warranted
when the hernia is small, reducible, or without true hernia
protrusion. A 10 percent evaluation is added for bilateral
involvement, provided the second hernia is compensable. This
means that the more severely disabling hernia is to be
evaluated, and 10 percent, only, added for the second hernia,
if the latter is of compensable degree. 38 C.F.R. Part 4.
According to the May 1992 rating decision which assigned a 10
percent evaluation for post-operative bilateral inguinal
hernia, the compensable rating was assigned because the
veteran’s pain had continued over an extended period of time
following his surgery and that such pain was analogous to a
painful scar. The RO assigned the 10 percent rating for
post-operative bilateral inguinal hernia under the provisions
of Diagnostic Code 7804.
Under the provisions of Diagnostic Code 7804, a scar which is
tender and painful on objective demonstration warrants a 10
percent rating. The Board also notes that a 10 percent
evaluation is warranted for a scar which is superficial,
poorly nourished, with repeated ulceration under Diagnostic
Code 7803. Additionally, under Diagnostic Code 7805, scars
will be rated based upon limitation of function of the part
affected. See Esteban v. Brown, 6 Vet. App. 259 (1994);
38 C.F.R. Part 4.
A private medical record dated in April 1992 shows that there
was no objective evidence of inguinal hernia at that time.
The veteran underwent a VA examination in May 1992, and the
diagnosis was history of status post bilateral inguinal
herniorrhaphy 1990. In May 1992, a private physician
reported that the veteran had no recurrent hernia.
Thus, while the veteran did undergo surgeries for his
bilateral inguinal hernia, the preponderance of the evidence
is against finding that either his right inguinal hernia or
the left inguinal hernia has recurred since the surgeries.
Thus, the criteria under Diagnostic Code 7338 for compensable
ratings for the service-connected hernias are not met.
38 C.F.R. Part 4.
At the September 1993 Board hearing, the veteran testified
that the problem he was experiencing with his service-
connected bilateral inguinal hernia was pain, but that the
doctors had not been able to determine the cause for his
complaints of pain in that area. A VA medical record dated
in October 1991 includes an assessment of possible ligated
nerve or possible nerve entrapment in scar tissue. A private
physician in May 1992 related that the veteran’s right and
left groin discomfort “may” be due to nerve entrapment. VA
outpatient treatment records dated in October 1991 and May
1992 show that the veteran complained of continued pain at
the sites of his bilateral hernia repair. The examiner noted
that the hernia sites looked okay. At the May 1992 VA
examination referred to above, the veteran complained of
bilateral inguinal pain that started a few weeks after two
hernia repairs in 1990 and described the pain as a continuous
dull ache that became sharp with certain activities.
Examination revealed bilateral 9 cm well healed inguinal
herniorrhaphy scars; however, there was no tenderness,
swelling, discoloration or sensory deficits. Additionally,
there were no inguinal or femoral hernia defects. On
examination, the veteran located the inguinal pain in a palm-
sized area surrounding the surgical scar, bilaterally, and
described it as being deep-seated with the left side much
worse than the right side. In diagnosing history of status
post bilateral inguinal herniorrhaphy 1990, the examiner also
related that there was chronic pain at surgical sites, left
greater than right. A private medical record dated in April
1992 also shows that the veteran had slight tenderness to
palpation over the inguinal surgical scars.
Thus, in addition to the veteran’s subjective complaints of
pain in the areas of his two inguinal hernia surgical scars,
there is probative evidence that both of the scars are tender
or painful on objective demonstration. Therefore, the Board
finds that another 10 percent rating for the other scar from
the veteran’s inguinal hernia surgeries in 1990 is warranted.
See Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. Part
4, Diagnostic Code 7804.
The Board also notes that the United States Court of Veterans
Appeals (Court) has held that the Board is precluded by
regulation from assigning an extra-schedular rating under
38 C.F.R. § 3.321(b)(1) (1998) in the first instance. Floyd
v. Brown, 9 Vet. App. 88 (1996). The Court has further held
that the Board must address referral under 38 C.F.R.
§ 3.321(b)(1) only where circumstances are presented which
the Director of the VA’s Compensation and Pension Service
might consider exceptional or unusual. Shipwash v. Brown,
8 Vet. App. 218, 227 (1995). Having reviewed the record with
these mandates in mind, the Board finds no basis for further
action on this question. The Board notes that the veteran
reported having lost a job in December 1994 but he related
“because of the injuries to my knees and ankles, and the
continuous walking I was unable to do the job in the amount
of time that was required…I was also unable to carry heavy
bags of mail and packages while walking the route.” For the
reasons discussed above, service connection for disabilities
of the knees and ankles is not warranted.
Finally, when after consideration of all evidence and
material of record, there is an approximate balance of
positive and negative evidence regarding the merits of an
issue material to the determination of the matter, the
benefit of the doubt in resolving such matter shall be given
to the claimant. 38 U.S.C.A. § 5107(b). However, for the
reasons discussed above, the Board finds that the
preponderance of the evidence is against the veteran's claims
for entitlement to increased evaluations for tension
headaches and bilateral inguinal hernia.
(CONTINUED ON NEXT PAGE)
ORDER
The appeal of the claims for entitlement to service
connection for a bilateral ankle disorder and a bilateral
knee disorder is denied.
An increased evaluation for tension headaches is denied.
A compensable evaluation for bilateral inguinal hernia is
denied.
A 10 percent evaluation for inguinal hernia scar is granted,
subject to the provisions governing the award of monetary
benefits.
JEFF MARTIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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